The Wasteland: Anticommons, White Spaces, and the Fallacy of Spectrum

University of Pennsylvania, The Wharton School, Legal Studies & Business Ethics Department

Date Written: August 1, 2009

Abstract

Nearly fifty years after FCC Chairman Newton Minow blasted broadcast television as a "vast wasteland," the FCC has the opportunity create a verdant new oasis of wireless connectivity. The long-dormant “white spaces” around broadcast TV channels may soon be opened to new forms of communication. The question is how the regulator should allocate these spaces: through more-flexible versions of the exclusive licenses granted to broadcasters, or through inclusive mechanisms that allow for broader access. The FCC has proposed to make the white spaces available on an unlicensed basis, meaning that any device meeting technical requirements could operate there.

The best solution is to consider the problem of gridlock in the broadcast bands holistically. Both exclusive property rights and unlicensed allocation can play synergistic roles.

The debate over what to do with the white spaces illustrates persistent misunderstandings about both wireless spectrum and property rights. Communications policy scholars agree that broadcasting represents a tragedy of the anticommons: a government-engendered misallocation of property rights, resulting in under-consumption of a valuable resource. They disagree about almost everything else.

Advocates of exclusive spectrum rights go astray by insisting, incorrectly, that spectrum itself is the scarce physical resource. The anticommons model sheds light on why this viewpoint is flawed. Both exclusion and inclusion have a place in spectrum policy, but only a commons approach can unlock the potential of the white spaces. This article uses the broadcast white spaces to analyze the nature of spectrum property rights and the potential for tragedies of the commons and anticommons.